The court also imposed a 25-per-cent victim fine surcharge as required by the Provincial Offences Act. The surcharge is credited to a special provincial government fund to assist victims of crime.

Background:

Two workers were performing the wash of a customer's tank container that carried nitrogen.

Nitrogen displaces oxygen and can be an asphyxiation hazard in an enclosed space. Neither worker was required to enter the tank to complete the wash.

One of the workers briefly left the workplace and returned. The worker who had remained was found unconscious in the tank.

Emergency medical services were called but the worker could not be revived.

The cause of death was determined by the coroner to be inert gas asphyxiation.

There were no eye witnesses to the incident. The worker was an experienced worker.

The Ministry of Labour's investigation found the company's written plan did not adequately identify certain workplace hazards. In particular, an access point of a customer's container was not equipped with warning signs as to the oxygen-depleted atmosphere of the tank.

Prokleen Washing Services commited the offence of failing as an employer to ensure the measures and procedures prescribed by section 7(1) of Ontario Regulation 632/05 (the Confined Spaces regulation) were carried out in the workplace, contrary to section 25(1)(c) of the Occupational Health and Safety Act.

The regulation states that "before any worker enters a confined space, the employer shall ensure an adequate written plan, including procedures for the control of hazards identified in the assessment, has been developed and implemented by a competent person for the confined space."